Insights

What are the special provisions of Ningbo military marriage divorce? The procedure is very different from ordinary divorce.

Ningbo Author：LuXu WANG

The raising of 1. issues

A military wife came to consult: her husband is an officer in active service, and the two have been separated all the year round. Their feelings have been indifferent.

She wanted to divorce, but her husband firmly disagreed. She heard that there were special regulations for military marriage and divorce, and she didn't know whether or not this marriage could be divorced and how to divorce.

This paper will focus on the above issues, from the legal provisions, practical operation, typical cases of three dimensions of the system.

2. legal basis

  • special protection rules: Article 1081 of the "Civil Code" stipulates: "The spouse of an active-duty soldier who requests a divorce shall obtain the consent of the soldier, except where the soldier has a major fault."
  • determination of major faults: Article 1079, paragraph 3, of the Civil Code stipulates that if bigamy or cohabitation with others, domestic violence or abuse and abandonment of family members, gambling and drug abuse and other bad habits do not change after repeated education, and separation due to emotional discord for two years, etc., if mediation is invalid, divorce shall be granted.
  • Rules on property and maintenance: articles 1062 and 1087 of the Civil Code on the principle of the division of the joint property of the husband and wife; article 1084 on the maintenance of children in the best interest of minor children.

3. core points

1. Soldiers do not agree, not absolutely can not leave

if the military party has no major fault and does not agree to divorce, the court will generally rule that divorce is not allowed. However, when a soldier has a statutory major fault, the spouse can directly sue for divorce without the restriction of "obtaining the consent of the soldier.

2. Major fault is the key to breaking through special protection.

Major faults often cited in practice include bigamy or cohabitation with others, domestic violence or abuse and abandonment of family members, gambling and drug abuse, and separation for two years due to emotional discord. It should be noted that "emotional discord" alone may not be sufficient, and it is usually necessary to meet the specific circumstances listed in Article 1079, paragraph 3. According to the divorce case of Meishan Court of Beilun District Court reported by Zhejiang Rule of Law News on October 13, 2021, the husband bigamy and gave birth to two children with others. The court decided to compensate 150000 yuan financially and support 50000 yuan for damages in accordance with Article 1088 of the Civil Code. The second instance of Ningbo Intermediate People's Court maintained that major faults such as bigamy were strictly recognized in Ningbo local judgments. The collection of relevant evidence is particularly critical to break through the special protection of military marriage.

3. Jurisdictional courts: military status determines whether a military court or a local court

if both parties are soldiers, they are usually under the jurisdiction of a military court; if one party is a non-soldier, it is necessary to judge whether the military court is under the jurisdiction of a local court or a military court based on the identity of the military party and the circumstances of the case. It is important to verify the rules of jurisdiction before proceeding to avoid being transferred after filing a case.

4. Agreement for divorce requires the army to issue relevant certificates.

In the case of a divorce by agreement, the civil affairs department usually requires the military party to provide a certificate of marital status issued by the military unit or a written opinion agreeing to the divorce. In the case of divorce, the court will also examine the status of the military, whether it has been mediated by the political organs of the army, whether the military agrees to divorce or whether there is a major fault.

4. boundary conditions: conclusions will be different in these cases

  • "Two years of separation" does not mean automatic divorce in military marriage.: Although Article 1079 of the Civil Code lists "separation for two years due to emotional discord" as a situation in which divorce should be granted in ordinary divorce, in military marriage, the spouse still needs to prove that the military party has "major fault" in order to break through the special protection of Article 1081.
  • Special protection is only applicable to active servicemen: the divorce of retired servicemen, demobilized personnel and some civilian personnel is not fully applicable to the special protection rules of active servicemen, which should be judged in combination with their specific identity.

5. operational steps

  1. confirmation of military status: whether it is an active soldier or a retired soldier, whether it belongs to a civilian, the rules are different for different identities.
  2. Assess whether there is a major fault: collect evidence of domestic violence, infidelity, gambling and drug use, long-term separation, etc.
  3. Try negotiation and troop mediation: Obtaining military consent or a certificate from the military can greatly simplify the process.
  4. Correctly choose the court of jurisdiction: consult a lawyer in advance to determine whether a military court or a local court.
  5. Synchronous preparation of property and support evidence: Even if military status affects the progress of divorce, property and support issues still need to be fixed in advance.

6. common mistakes

myth 1: Military marriage is absolutely inseparable. Correct solution: if one of the soldiers has a major fault, or both parties agree and obtain relevant certificates, the marriage relationship can still be dissolved according to law.

Myth 2: As long as the separation for two years, the court will definitely be sentenced to leave. Positive solution: in ordinary divorce, separation for two years is a legal divorce, but in military marriage, it is still necessary to prove that the soldier has made a major mistake in order to be free from the restriction of "requiring the consent of the soldier.

Myth 3: All divorces from military personnel apply special protection. Correct: Article 1081 of the Civil Code restricts active military personnel. Veterans, some civilian personnel, etc. do not fully apply the rule.

Although military marriage divorce has special protection, it is not inseparable. The key is whether the statutory exceptions are met and whether the procedures and courts are chosen correctly.

Practical Experience of 7. Lawyers

military marriage does have special protection, but special does not mean that it cannot be separated. The key is to find the right path. If one of the active servicemen has no major fault and does not agree to divorce, the court will not judge the divorce. However, once one of the soldiers has serious faults such as bigamy or cohabitation with others, domestic violence, gambling and drug abuse, the spouse can sue directly and is no longer bound by the "consent of the soldier. Therefore, for the parties who want to leave but are stuck, the first thing is to judge whether they have evidence of these major mistakes in their hands, instead of waiting for the other party to nod.

Evidence becomes the winner in such cases. Major faults cannot be established by complaints of emotional discord and long-term separation. They must fall into concrete facts: domestic violence corresponds to the receipt of the alarm, medical records, traces and certificates of cohabitation with others, and gambling and drug abuse corresponds to relevant records. These materials should be systematically sorted out and formed into a chain before prosecution, otherwise "separation for many years" is often just a description of emotional discord, which is not enough to break through the threshold of special protection. If the two sides can reach a consensus, it is not necessary to go around such a big circle, and it is faster to go directly to the agreement or mediation.

Procedural, the communication rhythm and submission materials of such cases often need to be arranged in advance than ordinary divorce, and it is not appropriate to cram for the last minute. The property and children parts are roughly the same as ordinary divorce, and are dealt with according to the principle of taking care of the rights and interests of the children, the woman and the no-fault party, and the party claiming the common property and the evidence of the fact of support should be prepared. When talking, if you judge that the other party is more concerned about the unit and reputation, you can take negotiation as the first choice. If you really want to go to litigation, you should also be prepared not to judge a divorce, and hold the rhythm in your own hands by judging and subsequent separation.